We had a very animated and satisfying discussion at Jack & Elizabeth's house, as everyone present (nine of us, coincidentally) seemed to enjoy the book, and Lou gave us useful insights and background to help us along. The almost novelistic focus on the personalities of the justices, and the close examination of the big issues that the Court had dealt with over the years, gave us greater perspective on how this important piece of our civic life has evolved and continues to change (see the artlcle below on the Roberts court). We all felt that having read the book will give us better understanding of the news and media coverage of the Supreme Court decisions. It was particularly noted that some of the supposed conservatives, such as Sandra Day O'Connor, had eventually come around to a more libertarian view. Maybe there is some hope for the Roberts court as well. It will be interesting to see how the new court will develop in the coming years.
from Jack
September 23, 2007
- Meet the Supremes
By DAVID MARGOLICK
THE NINE
Inside the Secret World of the Supreme Court.
By Jeffrey Toobin.
Illustrated. 369 pp. Doubleday. $27.95.
The farewell ceremony for Chief Justice William Rehnquist at the United States Supreme Court in September 2005 offers the kind of monumental tracking shot authors adore. Neatly and conveniently arrayed that day on the marble steps leading into the building, standing, by tradition, in reverse order of seniority, the justices line up. As some of Rehnquist’s former law clerks (his soon-to-be successor, John Roberts, among them) carry his casket past his former colleagues, Jeffrey Toobin follows the procession, freezing on each of the justices, then introducing them in turn.
But to anyone who watches the court, or watches those who watch it, Toobin’s descriptions afford something else, arguably even more interesting: the chance to ponder which of those justices talked to him for this book, and which did not. And talk to him some of them clearly did. Without their off-the-record whispers, there would be no “inside” story of any “secret” world to tell in “The Nine: Inside the Secret World of the Supreme Court.”
Of course, the myth is that the justices sit sealed on their Olympian perches, forever mum. In truth, some talk when it suits them, to toot their own horns, unburden their souls, allay their loneliness or justify something they’ve done. They talk very selectively: the more eminent and powerful the reporter or the publication, the more likely such conversations are. One can usually guess who’s gabbing, for among those who follow such things, their penchants are well known. But there are other hints, like a certain kindness of tone in whatever ends up on the air or the printed page. With that in mind, let’s accompany Toobin up those marble steps.
First there’s Stephen Breyer, with what Toobin calls his “gregarious good nature.” Odds are he spoke, a fair amount. Then Ruth Bader Ginsburg, “frail” and “shy” and, Toobin says, with only marginal influence on her colleagues. Maybe, but she’d have said precious little. Clarence Thomas, we learn, had gotten old and fat since his famously bloody confirmation battle. No way. David Souter “detested Washington” and “cared little what others thought of him.” Probably not, but he’s quirky enough to have tossed off a tidbit or two. Then Anthony Kennedy, far more worldly and influential than the “conventional, even boring” burgher he first appeared to be. Almost certainly yes. Antonin Scalia looked “lost and lonely” that day: absolutely not. Then Sandra Day O’Connor, about to entrust her seat to President George W. Bush, whom she considered “arrogant, lawless, incompetent and extreme.” Her fingerprints — or voice prints — practically leap off the page: how else could Toobin write something so incendiary so confidently? And finally there’s John Paul Stevens, “respected by his colleagues, if not really known to them.” Highly unlikely.
Reading Toobin’s smart and entertaining book, these hunches quickly solidify. Sprinkled throughout are quotes, facts, anecdotes, insights and interior monologues that could only have come from particular justices — most conspicuously, O’Connor, Breyer and Kennedy — along with flattering adjectives about each. Toobin, of course, never names names.
Try imagining any branch of government — the White House, say, or the State Department — covered solely on the basis of public events and printed releases, with nothing about its inner workings. It’s inconceivable. But that’s essentially how the Supreme Court beat works. Reporters assigned there rarely venture beyond oral arguments, briefs and decisions. Almost never do they stray from their cubicles. Part of this is perfectly sensible: the court makes most of its news through its opinions, and interpreting them, often heaps of them, at once, on tight deadlines, is damnably (and, maybe, deliberately) difficult. Those who do it well are rare, and they have little time to spare.
But it’s not the only reason for sticking to the handouts. Going beyond them, getting into the court’s internal operations and culture, is nearly impossible. And examining the justices critically, grading the quality and propriety and intellectual honesty of their work, is dangerous: you risk losing whatever tiny chance you have that one of them will talk to you in a pinch or throw you an occasional crumb. So almost no one even tries. No other reporters are as passive as Supreme Court reporters. Details about the drama and passion and pettiness of the place — in other words, about the way it does its work, our work — emerge only years after the fact, and only (as with the posthumous papers of Justice Harry Blackmun) when they are made available to the public.
Baghdad bureau chiefs and White House correspondents change every few years for a reason: over time reporters become entrenched or co-opted or burned out. But because covering the court is so difficult, or because everyone likes things as they are, reporters there enjoy an aberrational kind of tenure. Some are there for decades, becoming almost adjuncts of the court, absorbing its elitism, acting as cheerleaders or apologists or scolds, feeding the cult of personality that surrounds its members. Others become quasi justices themselves, handing down clever opinions on opinions rather than ever picking up a phone and asking a few questions.
The cartel is not only closed, but, as television news has withered, it is also shrinking. And scholars aren’t much help. Many top law professors once clerked on the court; cherishing their relations with the justices, along with the power to pull strings from Cambridge or New Haven or Palo Alto to land similar positions for their students, few dig deeply into court affairs. It all works very neatly; the only ones hurt are the American people, who know little about nine individuals with enormous power over their lives.
That is why, every decade or so, an enterprising and intelligent outsider like Toobin can come along and shine a much-needed spotlight on the place. He’s pedigreed (Harvard Law School), well connected (The New Yorker, CNN) and visible, the kind of person immured justices like to say they know. Most important, he’s not in one of those cubicles. He has an independence and perspective the lifers don’t. He’s not in awe of the place, not prone to covering it in hushed tones or to writing endlessly about red velvet curtains or black robes.
So, not surprisingly, “The Nine” is engaging, erudite, candid and accessible, often hard to put down. Toobin is a natural storyteller, and the stories he tells — how a coalition of centrist justices saved Roe v. Wade; why Rehnquist, despite having loathed the rights granted to criminal suspects by Miranda v. Arizona, eventually declined to overturn the decision; how right-wing firebrands deep-sixed the Supreme Court candidacies of Alberto Gonzales and Harriet Miers — are gripping. But its greatest surprise is that there are few great surprises. Toobin writes about the court more fluidly and fluently than anyone, but his buddies on the bench didn’t tell him much we don’t already know.
Like “Supreme Conflict,” Jan Crawford Greenburg’s recent examination of the same subject, Toobin seeks to plumb the court’s deepest mystery: why a tribunal so stuffed with Republicans (there have been only two Democratic nominees in the last 40 years) hasn’t shifted more radically rightward. He offers many explanations. Souter, appointed by the first President Bush, was to conservatives a colossal miscalculation. Rehnquist got tired, then sick. Breyer lobbied effectively from the left, or what’s left of the left, while Scalia’s extremism and blustery condescension miffed those in the middle. Kennedy became enraptured by foreign travel and more liberal foreign jurisprudence. Gay clerks came out of the closet.
O’Connor was clearly Toobin’s most important source. She’s also — readers can decide if it’s coincidental — his hero: the justice, he argues, who through her pragmatic, seat-of-the-pants jurisprudence single-handedly kept the court close to the American mainstream, particularly on matters like reproductive freedom and affirmative action. The Rehnquist court was really the O’Connor court, Toobin writes early on. But he’s only warming up: before long, the first female justice has shoved aside Eleanor Roosevelt, Margaret Sanger, Harriet Beecher Stowe and Susan B. Anthony to become “the most important woman in American history.” Give him another 60 pages, and she’s surpassed most of the men as well.
This is despite what Toobin himself concedes was her ignoble role in Bush v. Gore, the case that decided the 2000 presidential election. Beat reporters and academics initially denounced the court’s involvement in that case, its hastiness to enter the political thicket and the half-baked and strained decision that resulted; but invested in the image of the court as a principled and apolitical institution (and perhaps afraid of offending anyone), they quickly and predictably backed off. Yet even after writing an entire book about that case six years ago, Toobin remains white-hot about it, calling it “one of the lowest moments in the court’s history,” one that revealed the worst of just about everyone involved.
Here he does name names, as no beat reporter has ever done or would ever do, at least nibbling some of the hands that fed him. Only Stevens and Souter are spared. To Toobin’s credit, he does not exempt O’Connor.
A lifelong Republican — in her memos to Rehnquist, she routinely referred to her party as “we” and “us” — O’Connor played tennis with Barbara Bush, watched approvingly while George W. Bush rose as a “compassionate conservative,” looked “stricken” to fellow partygoers on election night 2000 when Al Gore appeared to have won. She determined early on in the litigation to stop the Florida recount, and in the five-to-four decision that followed, her vote was decisive. But her reasoning, as Toobin notes, was more visceral than legal — she hated untidiness, blamed Florida voters for being too stupid to follow instructions and thought Americans wanted the matter settled. She was wrong on both the facts and the law. It was an egregious performance, one that historians will skewer. Or maybe not, given who usually writes these histories.
Amid a torrent of criticism, O’Connor clearly held off-the-record conversations with reporters, trying to justify what she had done. Toobin does not mention this, nor the more general issue of the justices’ surreptitious ties to the press. Perhaps it’s too much to expect. Or perhaps he was just too busy taking down all of O’Connor’s ire, because she spends an awful lot of “The Nine” either annoyed, affronted or downright appalled by the events of the past few years.
She was appalled, for instance, by former Attorney General John Ashcroft, whom she considered extreme, polarizing, moralistic and — to use her favorite word — “unattractive.” She was appalled by how the Bush administration pandered to the religious right in the Terri Schiavo case. She was appalled by the nomination of Harriet Miers. And she’s been appalled, too, by Bush’s stances on affirmative action, the war on terror and the war in Iraq. And how did she feel when Bush brushed off the report of the Iraq Study Group, to which she belonged? She was appalled. And she was really, really appalled that the lower-court judge whose dissent in one crucial case she deemed “repugnant” — he’d have upheld a Pennsylvania law requiring wives to notify husbands before getting abortions — was the very man Bush picked to replace her: Samuel Alito.
A person is welcome to her opinions, but given O’Connor’s crucial role in putting Bush in office, such constant off-the-record carping is really a bit much. Toobin, naturally, doesn’t challenge her on any of it; when justices talk — and especially when they vent — you just let your tape recorder roll and hope the red light is flickering. But all this spinning makes one appreciate Thomas and Scalia; whatever one thinks of them or their jurisprudence, they speak their pieces in public — for attribution.
The book includes beautifully written essays on each of the justices, woven artfully into the narrative. The one on Thomas manages to be both sympathetic and devastating. There’s the reclusive Souter, who’d never heard of Diet Coke or of the other “Supremes” (the ones with Diana Ross), and the grandiloquent Kennedy, who toils most over those passages in his opinions he thinks The New York Times will pick up. The book is filled with pithy phrases, crystalline distillations and fine tidbits: the impertinent notes Breyer and Thomas pass one another during oral arguments; O’Connor’s efforts to marry off the bachelor Souter; Souter weeping — and contemplating resignation — after the Bush v. Gore decision.
But there are significant gaps. Toobin calls relations between the justices “cordial” but, frustratingly, offers only a few elaborations. How Ginsburg and O’Connor, the court’s first two women, got along surely warrants more than a sentence or two. Why were O’Connor and Stevens the only colleagues the dying Rehnquist allowed into his home? And who most regularly persuades whom (if, on such a factionalized court, there’s any persuasion going on at all)? Can it be true, as Greenburg has written, that at least initially it was not Scalia who influenced Thomas, but the other way around?
Much of Toobin’s book is based on oral arguments, briefs and opinions — nothing especially “secret” or “inside” about that. Sometimes, he actually strays quite far from the court. And he devotes lots of space to musty, antiquarian topics: Warren Burger’s vanity, the doomed nomination of Robert Bork, Bill Clinton’s attempt to woo Mario Cuomo into a court appointment. Going through “The Nine” is a bit like reading one of those Roger Angell essays on a recent World Series: the writing is exquisite, but the game’s been over awhile. Despite the importance of Roberts and Alito, Toobin takes far too long to reach them, then tells us far too little about what kind of men, and justices, and colleagues, they are turning out to be. He had a year to study them and might have told us much the beat reporters couldn’t or wouldn’t or, in any case, haven’t. Describing the body language on the court’s last day this past June (Souter seething, Breyer rolling his eyes, Alito staring at Breyer, Roberts’s jaw muscles twitching) doesn’t really do the trick.
Considering the secrecy shrouding the place, just about Toobin’s only remaining reportorial option was to try what Bob Woodward and Scott Armstrong did in “The Brethren” a generation ago: canvass former law clerks, three or four of whom pass through each chamber every year. They are, as Toobin writes, not nearly as important as they think they are; after all, they’re not privy to their bosses’ deliberations. And they can be very full of themselves, priggish and protective, even proprietary, about the court. Just ask Edward Lazarus, who in 1998 published an account of his year clerking for Justice Blackmun; for his breach of omertà, his fellow clerks shunned him at Blackmun’s funeral.
But there are many, many clerks; they heard — and still hear — a lot; and for all the sycophants and careerists, kingmakers and aspiring federal judges among them, some are surprisingly independent and outspoken, believing that excessive deference to even the most necessarily private branch of government ill serves our democracy. Toobin says he spoke to 75 of them, but anyone writing a book like this simply has to telephone them all, even if 9 of every 10 hang up in a huff. I wish Toobin had done this, because it would have made his book even better. When it comes to covering the United States Supreme Court as a living, breathing, human institution rather than as a collection of icons, “The Nine” is state of the art. But it’s an art in need of a renaissance.
David Margolick is a contributing editor at Vanity Fair and the author of “Beyond Glory: Joe Louis vs. Max Schmeling, and a World on the Brink.” He once covered legal affairs for The Times.
The basic ruling in yesterday’s five-to-four Supreme Court decision was straightforward and, in many ways, predictable. Chief Justice John G. Roberts, Jr., and his four conservative colleagues almost invariably rule in favor of corporate interests, and the Citizens United case was no exception. The Court ruled that corporations (and labor unions and other organizations) have the right, under the First Amendment, to participate in political campaigns by spending as much money as they want on behalf of political candidates. In other words, companies can produce commercials and buy time to support or oppose candidates for office.
Two thoughts. First, Republicans will benefit, of course. Corporations have vastly more money than unions, and corporations by and large prefer to support the G.O.P. But the spectre of Exxon buying time to support Barack Obama’s opponent in 2012 seems unlikely to me. Presidential campaigns are high-profile and generally well-funded; Exxon (or its ilk) would probably not make much difference—and likely draw a consumer boycott with a controversial choice.
The much bigger implication of the decision is likely to come in judicial elections. In the states that elect judges (about two-thirds of them), most voters pay relatively little attention to the races, but the contests, especially for the state supreme courts, tend to be vicious and expensive. Corporate interests often have a huge stake in the outcome, because most personal-injury lawsuits and other civil cases are handled at the state level. The whole notion of electing judges is tawdry and awful; Justice Sandra Day O’Connor has devoted a great deal of energy, during her retirement from the Supreme Court, to urging states to move to appointive systems. Corporate freedom to dump untold amounts of money into these races will make bad systems worse.
Second, it has long been a staple of conservative thought to criticize “judicial activism”—the practice of unelected judges imposing their own policy judgments to overrule the will of the people’s elected representatives. But it is hard to imagine a more activist decision than the Citizens Union case. Congress passed the McCain-Feingold law, and President George W. Bush signed it, in the knowledge that the Supreme Court had repeatedly blessed restrictions on corporate political activity. But Justice Anthony Kennedy’s opinion blithely overturned Court precedent, and rejected the work of the elected branches—all in service of the bizarre legal theories that (1) corporations have the same rights as human beings, and (2) spending money is the same thing as speaking. This was judicial activism of the most egregious kind. Indeed, it wasn’t as much a judicial opinion as it was Republican talking points.
Jeffrey Toobin (b. May 21, 1960 in New York City) is a senior analyst for CNN Worldwide. Based in the network's New York bureau, Toobin joined CNN in April 2002. He is also a staff writer at The New Yorker and has been covering legal affairs for the magazine since 1993.
Toobin joined CNN from ABC News, where, during his six-year tenure as a legal analyst, he provided legal analysis on the nation’s most provocative and high profile cases, including the O.J. Simpson civil trial and the Kenneth Starr investigation of the Clinton White House. Toobin received a 2001 Emmy Award for his coverage of the Elian Gonzales custody saga.
Previously, Toobin served as an assistant U.S. attorney in Brooklyn. He also served as an associate counsel in the Office of Independent Counsel Lawrence E. Walsh, an experience that provided the basis for his first book, Opening Arguments: A Young Lawyer's First Case—United States v. Oliver North.
Toobin has written several critically acclaimed, best-selling books including A Vast Conspiracy: The Real Story of the Sex Scandal that Nearly Brought Down a President, The Run of His Life: The People v. O.J. Simpson, and Too Close to Call: The 36-Day Battle to Decide the 2000 Election. His most recent book, The Nine: Inside the Secret World of the Supreme Court, spent more than four months on the New York Times best-seller list and earned the 2008 J. Anthony Lukas Prize for Nonfiction from the Columbia Graduate School of Journalism and the Nieman Foundation for Journalism at Harvard University.
Toobin earned his bachelor's degree from Harvard College and graduated magna cum laude from Harvard Law School where he was an editor of the Harvard Law Review.
Toobin currently lives in New York City with his wife and two children.
Baby drama! CNN star Jeffrey Toobin offered Casey Greenfield money for abortion: sources Rush & Molloy
Sunday could be a bittersweet first Mother's Day for Casey Greenfield.
Greenfield is a pretty, ginger-haired, Yale-educated lawyer and writer who last March gave birth to a love child. The baby's father is married CNN star and best-selling New Yorker writer Jeffrey Toobin. (Casey's father is esteemed political pundit Jeff Greenfield.) Ever since we broke the news of her pregnancy, Casey has remained silent about the baby drama. But now some of her friends are fed up with what they claim is less-than-gallant behavior on Toobin's part.
Greenfield, now 36, was in her 20s when she fell for Toobin, now 49, even though he was wed to Amy McIntosh, the Harvard sweetheart he'd married in 1986 and who gave him two children.
"Jeff and Casey saw each other off and on over the years," says one source. "She was married to someone else for two years. After her divorce, she started seeing Jeff again. He said he was going to leave his wife for her. But, by then, Casey had begun to distrust him. She suspected he had several other mistresses."
In 2008, when Greenfield became pregnant, and when she told Toobin the news, he offered her "money if she'd have an abortion," says a source. He also allegedly offered to pay for her to have another child later via a sperm donor.
"When Casey wouldn't have an abortion, Jeff told her she was going to regret it, that she shouldn't expect any help from him," claims another source.
Greenfield underwent a risky DNA test while pregnant, but Toobin didn't provide his sample and stopped talking to her, according to sources. On the day she gave birth, Greenfield e-mailed Toobin, inviting him to meet his son, Rory. A source says Toobin didn't reply.
Toobin ultimately cooperated with a DNA test that proved he was Rory's dad. In February, a Manhattan Family Court judge ordered him to pay child support. When he refused to pay the full amount, say sources, Greenfield's lawyer threatened to notify his employers and garnish his wages; Toobin then paid up.
Toobin now sees the 13-month-old lookalike heir. "His wife, Amy, comes with them to the park," says a source. He's said to have asked to spend every other weekend with Rory.
"Casey isn't convinced he really wants to serve as a dad," says a friend. "It may be legal maneuvering."
Attorneys for Toobin and Greenfield didn't respond to requests for comment.
"It's been a hard couple of years for Casey," says a friend. "She's a single mom. But her family couldn't be more supportive. The baby is such a joy for everyone."
A year later, the profile of the court led by Chief Justice John G. Roberts Jr. is fundamentally changed. Judicial minimalism is gone, and the court has entered an assertive and sometimes unpredictable phase.
That will only intensify with the retirement of Justice John Paul Stevens, a 35-year veteran of the court and the leader of its liberal wing, and his likely replacement by Elena Kagan, the solicitor general, whose confirmation hearings in the Senate are under way this week.
Chief Justice Roberts, who joined the court five years ago, took control of it this year, pushing hard on issues of core concern to him, including campaign finance, gun rights and criminal procedure, even as he found common ground with his colleagues, including some liberals, on an array of other issues.
He was in the majority 92 percent of the time, more than any other justice. Last year that distinction went to Justice Anthony M. Kennedy, who is often regarded as the court’s swing vote.
“More than in any other year since he became chief justice, this has truly become the Roberts court,” said Gregory G. Garre, who served as solicitor general in the administration of George W. Bush and is now at Latham & Watkins.
The centerpiece of the last term was, of course, the 5-to-4 decision in Citizens United, allowing unlimited corporate spending in elections. The ruling generated waves of criticism, including comments from President Obama at the State of the Union address in January. It was the most controversial decision since the Rehnquist court handed the presidency to Mr. Bush a decade ago in Bush v. Gore, and it was easily the most debated of the Roberts court era so far.
The outcry did not chasten the court.
“I don’t think it made the least bit of difference to the five justices in the majority,” said Paul D. Clement, who also served as solicitor general in the second Bush administration and is now with King & Spalding.
The Citizens United decision contained not a trace of minimalism, and it showed great solicitude to the interests of corporations.
“They’re fearless,” Lisa S. Blatt, who served in the solicitor general’s office for 13 years before joining Arnold & Porter last year, said of the justices in the majority. “This is a business court. Now it’s the era of the corporation and the interests of business.”
That trend, lawyers and legal scholars said, may well threaten recent legislation overhauling financial regulations and the health care system when challenges to them reach the court.
Some of the issues that have most engaged the court in recent years were missing this term, which included only one decision concerning national security and none about abortion or about prisoners held at Guantánamo Bay, Cuba.
The court continued its push to broaden Second Amendment rights, ruling on Monday that the amendment’s protections apply to state and local gun control laws as well as to federal law.
And the justices further limited the rights of criminal defendants. Last term, the court narrowed earlier decisions barring the use of evidence obtained through police misconduct.
This term, the court was focused on the Miranda rule, which requires the police to warn suspects in custody of their rights before interrogating them. In three decisions this term, the court allowed the police to vary the language of the warning, insist that suspects speak in order to protect their right to remain silent and resume questioning after suspects have invoked their rights.
“The court continues its march to restrict exclusionary rules,” said Jeffrey L. Fisher, a law professor at Stanford who argues frequently before the court. “The court is refusing to exclude what the court thinks is reliable evidence in criminal cases. None of the conservatives are unpredictable in any of these cases. They’re leading the retreat.”
The court acted quickly — and, some critics said, rashly — in intervening in cases without full briefing and argument. In January, it halted the broadcast of the trial over same-sex marriage in San Francisco partly on a rationale it seemed to disavow five months later. This month, it sent elections in Arizona into disarray by barring the use of a 12-year-old campaign finance law.
Thomas C. Goldstein, a lawyer with Akin Gump Strauss Hauer & Feld and the founder and publisher of Scotusblog, which prepared comprehensive statistics about the court, said the court’s five more conservative members — Chief Justice Roberts and Justices Kennedy, Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — were simultaneously aggressive and selective.
“I’m struck by the ways in which the conservatives seem to be willing to take significant steps on core questions,” Mr. Goldstein said, noting campaign finance and Miranda rights as examples. “In other cases, the five more conservative members of the court don’t seem to be prepared to press every advantage.”
Indeed, Chief Justice Roberts provided a sixth vote in the decision banning life-without-parole sentences for juvenile offenders, though on a narrower ground than the majority. He was the only justice to join every part of Justice Ruth Bader Ginsburg’s majority opinion casting doubt on the conviction of Jeffrey K. Skilling, the former Enron executive.
And the chief justice joined the court’s four more liberal members — Justices Stevens, Ginsburg, Stephen G. Breyer and Sonia Sotomayor — in Justice Breyer’s majority opinion affirming Congressional power to authorize the civil confinement of sex offenders. Justices Kennedy and Alito filed concurrences, making the vote in the case 7 to 2.
“The term as a whole will go down principally for what we see in the evolution of John Roberts and his leadership of the institution,” Mr. Goldstein said. “He cares about the position of the court in American life. He is not pressing every ideological question but is willing to cross over.”
Chief Justice Roberts is not wedded to a single judicial methodology like the originalism and textualism that are the touchstones for Justices Scalia and Thomas.
Justices Scalia and Thomas, who voted together 92 percent of the time — the highest of any pair of justices — often take positions based on jurisprudential principles without regard to the outcome in a particular case. In criminal cases, Mr. Clement said, “It’s striking how often if the court gets to a pro-defendant result the majority includes Justice Scalia.”
Chief Justice Roberts and Justice Alito, by contrast, can appear more pragmatic.
Nor does Chief Justice Roberts seem as interested in exploring the limits of federal power as Chief Justice William H. Rehnquist, who died in 2005, and Justice Sandra Day O’Connor, who retired in 2006, had been.
“Federalism has less salience with this court than it did with the Rehnquist court,” Sri Srinivasan, who served in the solicitor general’s office and is now with O’Melveny & Myers, said at a Chamber of Commerce briefing last week.
There were more surprises and unusual alliances in this term than in most recent ones. Justice Stevens, for instance, joined the court’s five more conservative members in voting to uphold provisions of a law making it a crime to provide even benign and intangible aid to foreign terrorist organizations.
Justice Sotomayor’s replacement of Justice David H. Souter last year turned out to do almost nothing to alter the court’s ideological balance. She voted with Justices Ginsburg and Breyer 90 percent of the time. Some liberals had feared that her experience as a prosecutor would make her skeptical of some claims from criminal defendants, but she voted in a reliably liberal direction in those and other cases. Her first major dissent was in a case narrowing Miranda rights.
Similarly, the replacement of Justice Stevens by a Justice Kagan, a 50-year-old who has never served as a judge, would in all likelihood do little to affect the voting lineups on the court. But the departure of Justice Stevens nonetheless represents a turning point.
“The intellectual, emotional, political, tactical leader of the left is leaving,” Mr. Goldstein said.
The court is also losing a bit of a maverick who was often skeptical of government power. With a Justice Kagan, Professor Fisher said, “we could be moving more to a court that is willing to defer to the executive.”
Seniority has privileges at the court. The senior justice speaks second at the court’s private conferences, after the chief justice. If the chief justice is not in the majority, the next-most-senior justice assigns the majority opinion.
“Stevens’s seniority and experience on the court really carries a lot of heft,” said Professor Fisher, who served as a law clerk to Justice Stevens. “Even if the exact same person could be reincarnated tomorrow as a junior justice, it would still be a huge loss.”
- The Court’s Aggressive Term
The New York Times
Editorial - Published: July 4, 2010
Article from Lou Cohen - please note that active links in the article lead to the actual cases referred to.
John Roberts Jr., the chief justice of the United States, did not write the most important opinion of his court’s just concluded term, the one that allowed unlimited corporate and union spending in election campaigns. But his concurring opinion in that case, Citizens United v. Federal Election Commission, is the best guide to the court’s most unsettling tendency.
In the most recent term, even more than in earlier years, the Roberts court demonstrated its determination to act aggressively to undo aspects of law it found wanting, no matter the cost.
Explaining why the court’s five-vote majority in Citizens United had toppled precedent to reach its decision, Justice Roberts wrote that the court must be willing to depart from a previous decision if it thinks it does damage to a constitutional ideal, and particularly if the precedent was an aberration. A decision can become an aberration, it turns out, if the court’s conservatives never agreed with it in the first place. If not quite legislating from the bench, this is not a formula for stability.
It was not a thoroughly disappointing term. But the tone and posture of the court’s conservative majority made clear that it is not done asserting itself in redefining campaign finance laws, the rights of corporations, national security powers and the ownership of guns.
We do not argue that precedent must be worshiped and upheld at all costs. If that were the case, as Justice Roberts noted, segregation would still be legal and minimum-wage laws unconstitutional. But when the Brown v. Board of Education decision in 1954 overturned Plessy v. Ferguson from 1896 and outlawed segregation, it came after many years of relentless legal efforts against Jim Crow by Thurgood Marshall and many others. It was clear that the legal landscape was changing.
When the Roberts court overruled precedent in the Citizens United case, it did so far more abruptly. The dissenters, led by Justice John Paul Stevens, said the majority “blazes through our precedents” in a “dramatic break from our past.” It was nothing other than judicial activism when the court five months later stepped directly into the gubernatorial race in Arizona, cutting off matching funds to candidates participating in the state’s campaign finance system. The message to other states and cities with similar systems was clear: Watch out. When the Roberts court has a goal in mind, niceties like an actual political campaign cannot be allowed to get in the way.
The deference to corporate rights found in Citizens United could also be seen last month. The court made it harder for consumers and workers to challenge the mandatory arbitration clauses found in so many contracts, all designed to keep the fate of corporations out of the hands of judges and juries. When that mindset is combined with the court’s willingness to defy precedent and Congress, it could spell trouble for the national health care law when legal challenges reach the court.
But the court’s shifting majorities and Justice Roberts’s own preferences were unpredictable this year, leading to many welcome decisions. Life sentences for juvenile criminals who do not commit murder were banned. The vague “honest services” statutes, a favorite of prosecutors, were struck down.
Court decisions about property laws were ruled not to be “takings,” a blow to the property rights movement. And the court refused to put more categories of speech beyond the First Amendment.
Still, the problematic decisions continue to leave us worried about upcoming terms, where more decisions about fundamental rights await. In the last month alone, majorities on the court said gun ownership was a fundamental Second Amendment right that applies to states and cities, while reducing the First Amendment rights of those who try to pacify terrorist groups. If Elena Kagan is confirmed, her first task will be to keep her pledge and help the court realize that judicial modesty actually means something.
Table of Contents
- Discussion
July 8, 2010We had a very animated and satisfying discussion at Jack & Elizabeth's house, as everyone present (nine of us, coincidentally) seemed to enjoy the book, and Lou gave us useful insights and background to help us along. The almost novelistic focus on the personalities of the justices, and the close examination of the big issues that the Court had dealt with over the years, gave us greater perspective on how this important piece of our civic life has evolved and continues to change (see the artlcle below on the Roberts court). We all felt that having read the book will give us better understanding of the news and media coverage of the Supreme Court decisions. It was particularly noted that some of the supposed conservatives, such as Sandra Day O'Connor, had eventually come around to a more libertarian view. Maybe there is some hope for the Roberts court as well. It will be interesting to see how the new court will develop in the coming years.
from Jack
September 23, 2007
- Meet the Supremes
By DAVID MARGOLICK
THE NINE
Inside the Secret World of the Supreme Court.By Jeffrey Toobin.
Illustrated. 369 pp. Doubleday. $27.95.
The farewell ceremony for Chief Justice William Rehnquist at the United States Supreme Court in September 2005 offers the kind of monumental tracking shot authors adore. Neatly and conveniently arrayed that day on the marble steps leading into the building, standing, by tradition, in reverse order of seniority, the justices line up. As some of Rehnquist’s former law clerks (his soon-to-be successor, John Roberts, among them) carry his casket past his former colleagues, Jeffrey Toobin follows the procession, freezing on each of the justices, then introducing them in turn.
But to anyone who watches the court, or watches those who watch it, Toobin’s descriptions afford something else, arguably even more interesting: the chance to ponder which of those justices talked to him for this book, and which did not. And talk to him some of them clearly did. Without their off-the-record whispers, there would be no “inside” story of any “secret” world to tell in “The Nine: Inside the Secret World of the Supreme Court.”
Of course, the myth is that the justices sit sealed on their Olympian perches, forever mum. In truth, some talk when it suits them, to toot their own horns, unburden their souls, allay their loneliness or justify something they’ve done. They talk very selectively: the more eminent and powerful the reporter or the publication, the more likely such conversations are. One can usually guess who’s gabbing, for among those who follow such things, their penchants are well known. But there are other hints, like a certain kindness of tone in whatever ends up on the air or the printed page. With that in mind, let’s accompany Toobin up those marble steps.
First there’s Stephen Breyer, with what Toobin calls his “gregarious good nature.” Odds are he spoke, a fair amount. Then Ruth Bader Ginsburg, “frail” and “shy” and, Toobin says, with only marginal influence on her colleagues. Maybe, but she’d have said precious little. Clarence Thomas, we learn, had gotten old and fat since his famously bloody confirmation battle. No way. David Souter “detested Washington” and “cared little what others thought of him.” Probably not, but he’s quirky enough to have tossed off a tidbit or two. Then Anthony Kennedy, far more worldly and influential than the “conventional, even boring” burgher he first appeared to be. Almost certainly yes.
Antonin Scalia looked “lost and lonely” that day: absolutely not. Then Sandra Day O’Connor, about to entrust her seat to President George W. Bush, whom she considered “arrogant, lawless, incompetent and extreme.” Her fingerprints — or voice prints — practically leap off the page: how else could Toobin write something so incendiary so confidently? And finally there’s John Paul Stevens, “respected by his colleagues, if not really known to them.” Highly unlikely.
Reading Toobin’s smart and entertaining book, these hunches quickly solidify. Sprinkled throughout are quotes, facts, anecdotes, insights and interior monologues that could only have come from particular justices — most conspicuously, O’Connor, Breyer and Kennedy — along with flattering adjectives about each. Toobin, of course, never names names.
Try imagining any branch of government — the White House, say, or the State Department — covered solely on the basis of public events and printed releases, with nothing about its inner workings. It’s inconceivable. But that’s essentially how the Supreme Court beat works. Reporters assigned there rarely venture beyond oral arguments, briefs and decisions. Almost never do they stray from their cubicles. Part of this is perfectly sensible: the court makes most of its news through its opinions, and interpreting them, often heaps of them, at once, on tight deadlines, is damnably (and, maybe, deliberately) difficult. Those who do it well are rare, and they have little time to spare.
But it’s not the only reason for sticking to the handouts. Going beyond them, getting into the court’s internal operations and culture, is nearly impossible. And examining the justices critically, grading the quality and propriety and intellectual honesty of their work, is dangerous: you risk losing whatever tiny chance you have that one of them will talk to you in a pinch or throw you an occasional crumb. So almost no one even tries. No other reporters are as passive as Supreme Court reporters. Details about the drama and passion and pettiness of the place — in other words, about the way it does its work, our work — emerge only years after the fact, and only (as with the posthumous papers of Justice Harry Blackmun) when they are made available to the public.
Baghdad bureau chiefs and White House correspondents change every few years for a reason: over time reporters become entrenched or co-opted or burned out. But because covering the court is so difficult, or because everyone likes things as they are, reporters there enjoy an aberrational kind of tenure. Some are there for decades, becoming almost adjuncts of the court, absorbing its elitism, acting as cheerleaders or apologists or scolds, feeding the cult of personality that surrounds its members. Others become quasi justices themselves, handing down clever opinions on opinions rather than ever picking up a phone and asking a few questions.
The cartel is not only closed, but, as television news has withered, it is also shrinking. And scholars aren’t much help. Many top law professors once clerked on the court; cherishing their relations with the justices, along with the power to pull strings from Cambridge or New Haven or Palo Alto to land similar positions for their students, few dig deeply into court affairs. It all works very neatly; the only ones hurt are the American people, who know little about nine individuals with enormous power over their lives.
That is why, every decade or so, an enterprising and intelligent outsider like Toobin can come along and shine a much-needed spotlight on the place. He’s pedigreed (Harvard Law School), well connected (The New Yorker, CNN) and visible, the kind of person immured justices like to say they know. Most important, he’s not in one of those cubicles. He has an independence and perspective the lifers don’t. He’s not in awe of the place, not prone to covering it in hushed tones or to writing endlessly about red velvet curtains or black robes.
So, not surprisingly, “The Nine” is engaging, erudite, candid and accessible, often hard to put down. Toobin is a natural storyteller, and the stories he tells — how a coalition of centrist justices saved Roe v. Wade; why Rehnquist, despite having loathed the rights granted to criminal suspects by Miranda v. Arizona, eventually declined to overturn the decision; how right-wing firebrands deep-sixed the Supreme Court candidacies of Alberto Gonzales and Harriet Miers — are gripping. But its greatest surprise is that there are few great surprises. Toobin writes about the court more fluidly and fluently than anyone, but his buddies on the bench didn’t tell him much we don’t already know.
Like “Supreme Conflict,” Jan Crawford Greenburg’s recent examination of the same subject, Toobin seeks to plumb the court’s deepest mystery: why a tribunal so stuffed with Republicans (there have been only two Democratic nominees in the last 40 years) hasn’t shifted more radically rightward. He offers many explanations. Souter, appointed by the first President Bush, was to conservatives a colossal miscalculation. Rehnquist got tired, then sick. Breyer lobbied effectively from the left, or what’s left of the left, while Scalia’s extremism and blustery condescension miffed those in the middle. Kennedy became enraptured by foreign travel and more liberal foreign jurisprudence. Gay clerks came out of the closet.
O’Connor was clearly Toobin’s most important source. She’s also — readers can decide if it’s coincidental — his hero: the justice, he argues, who through her pragmatic, seat-of-the-pants jurisprudence single-handedly kept the court close to the American mainstream, particularly on matters like reproductive freedom and affirmative action. The Rehnquist court was really the O’Connor court, Toobin writes early on. But he’s only warming up: before long, the first female justice has shoved aside Eleanor Roosevelt, Margaret Sanger, Harriet Beecher Stowe and Susan B. Anthony to become “the most important woman in American history.” Give him another 60 pages, and she’s surpassed most of the men as well.
This is despite what Toobin himself concedes was her ignoble role in Bush v. Gore, the case that decided the 2000 presidential election. Beat reporters and academics initially denounced the court’s involvement in that case, its hastiness to enter the political thicket and the half-baked and strained decision that resulted; but invested in the image of the court as a principled and apolitical institution (and perhaps afraid of offending anyone), they quickly and predictably backed off. Yet even after writing an entire book about that case six years ago, Toobin remains white-hot about it, calling it “one of the lowest moments in the court’s history,” one that revealed the worst of just about everyone involved.
Here he does name names, as no beat reporter has ever done or would ever do, at least nibbling some of the hands that fed him. Only Stevens and Souter are spared. To Toobin’s credit, he does not exempt O’Connor.
A lifelong Republican — in her memos to Rehnquist, she routinely referred to her party as “we” and “us” — O’Connor played tennis with Barbara Bush, watched approvingly while George W. Bush rose as a “compassionate conservative,” looked “stricken” to fellow partygoers on election night 2000 when Al Gore appeared to have won. She determined early on in the litigation to stop the Florida recount, and in the five-to-four decision that followed, her vote was decisive. But her reasoning, as Toobin notes, was more visceral than legal — she hated untidiness, blamed Florida voters for being too stupid to follow instructions and thought Americans wanted the matter settled. She was wrong on both the facts and the law. It was an egregious performance, one that historians will skewer. Or maybe not, given who usually writes these histories.
Amid a torrent of criticism, O’Connor clearly held off-the-record conversations with reporters, trying to justify what she had done. Toobin does not mention this, nor the more general issue of the justices’ surreptitious ties to the press. Perhaps it’s too much to expect. Or perhaps he was just too busy taking down all of O’Connor’s ire, because she spends an awful lot of “The Nine” either annoyed, affronted or downright appalled by the events of the past few years.
She was appalled, for instance, by former Attorney General John Ashcroft, whom she considered extreme, polarizing, moralistic and — to use her favorite word — “unattractive.” She was appalled by how the Bush administration pandered to the religious right in the Terri Schiavo case. She was appalled by the nomination of Harriet Miers. And she’s been appalled, too, by Bush’s stances on affirmative action, the war on terror and the war in Iraq. And how did she feel when Bush brushed off the report of the Iraq Study Group, to which she belonged? She was appalled. And she was really, really appalled that the lower-court judge whose dissent in one crucial case she deemed “repugnant” — he’d have upheld a Pennsylvania law requiring wives to notify husbands before getting abortions — was the very man Bush picked to replace her: Samuel Alito.
A person is welcome to her opinions, but given O’Connor’s crucial role in putting Bush in office, such constant off-the-record carping is really a bit much. Toobin, naturally, doesn’t challenge her on any of it; when justices talk — and especially when they vent — you just let your tape recorder roll and hope the red light is flickering. But all this spinning makes one appreciate Thomas and Scalia; whatever one thinks of them or their jurisprudence, they speak their pieces in public — for attribution.
The book includes beautifully written essays on each of the justices, woven artfully into the narrative. The one on Thomas manages to be both sympathetic and devastating. There’s the reclusive Souter, who’d never heard of Diet Coke or of the other “Supremes” (the ones with Diana Ross), and the grandiloquent Kennedy, who toils most over those passages in his opinions he thinks The New York Times will pick up. The book is filled with pithy phrases, crystalline distillations and fine tidbits: the impertinent notes Breyer and Thomas pass one another during oral arguments; O’Connor’s efforts to marry off the bachelor Souter; Souter weeping — and contemplating resignation — after the Bush v. Gore decision.
But there are significant gaps. Toobin calls relations between the justices “cordial” but, frustratingly, offers only a few elaborations. How Ginsburg and O’Connor, the court’s first two women, got along surely warrants more than a sentence or two. Why were O’Connor and Stevens the only colleagues the dying Rehnquist allowed into his home? And who most regularly persuades whom (if, on such a factionalized court, there’s any persuasion going on at all)? Can it be true, as Greenburg has written, that at least initially it was not Scalia who influenced Thomas, but the other way around?
Much of Toobin’s book is based on oral arguments, briefs and opinions — nothing especially “secret” or “inside” about that. Sometimes, he actually strays quite far from the court. And he devotes lots of space to musty, antiquarian topics: Warren Burger’s vanity, the doomed nomination of Robert Bork, Bill Clinton’s attempt to woo Mario Cuomo into a court appointment. Going through “The Nine” is a bit like reading one of those Roger Angell essays on a recent World Series: the writing is exquisite, but the game’s been over awhile. Despite the importance of Roberts and Alito, Toobin takes far too long to reach them, then tells us far too little about what kind of men, and justices, and colleagues, they are turning out to be. He had a year to study them and might have told us much the beat reporters couldn’t or wouldn’t or, in any case, haven’t. Describing the body language on the court’s last day this past June (Souter seething, Breyer rolling his eyes, Alito staring at Breyer, Roberts’s jaw muscles twitching) doesn’t really do the trick.
Considering the secrecy shrouding the place, just about Toobin’s only remaining reportorial option was to try what Bob Woodward and Scott Armstrong did in “The Brethren” a generation ago: canvass former law clerks, three or four of whom pass through each chamber every year. They are, as Toobin writes, not nearly as important as they think they are; after all, they’re not privy to their bosses’ deliberations. And they can be very full of themselves, priggish and protective, even proprietary, about the court. Just ask Edward Lazarus, who in 1998 published an account of his year clerking for Justice Blackmun; for his breach of omertà, his fellow clerks shunned him at Blackmun’s funeral.
But there are many, many clerks; they heard — and still hear — a lot; and for all the sycophants and careerists, kingmakers and aspiring federal judges among them, some are surprisingly independent and outspoken, believing that excessive deference to even the most necessarily private branch of government ill serves our democracy. Toobin says he spoke to 75 of them, but anyone writing a book like this simply has to telephone them all, even if 9 of every 10 hang up in a huff. I wish Toobin had done this, because it would have made his book even better. When it comes to covering the United States Supreme Court as a living, breathing, human institution rather than as a collection of icons, “The Nine” is state of the art. But it’s an art in need of a renaissance.
David Margolick is a contributing editor at Vanity Fair and the author of “Beyond Glory: Joe Louis vs. Max Schmeling, and a World on the Brink.” He once covered legal affairs for The Times.
- Recent Article in The New Yorker
http://www.newyorker.com/online/blogs/newsdesk/2010/01/campaign-finance.htmlBad Judgment
Posted by Jeffrey Toobin
Article from Jack Thompson
The basic ruling in yesterday’s five-to-four Supreme Court decision was straightforward and, in many ways, predictable. Chief Justice John G. Roberts, Jr., and his four conservative colleagues almost invariably rule in favor of corporate interests, and the Citizens United case was no exception. The Court ruled that corporations (and labor unions and other organizations) have the right, under the First Amendment, to participate in political campaigns by spending as much money as they want on behalf of political candidates. In other words, companies can produce commercials and buy time to support or oppose candidates for office.
Two thoughts. First, Republicans will benefit, of course. Corporations have vastly more money than unions, and corporations by and large prefer to support the G.O.P. But the spectre of Exxon buying time to support Barack Obama’s opponent in 2012 seems unlikely to me. Presidential campaigns are high-profile and generally well-funded; Exxon (or its ilk) would probably not make much difference—and likely draw a consumer boycott with a controversial choice.
The much bigger implication of the decision is likely to come in judicial elections. In the states that elect judges (about two-thirds of them), most voters pay relatively little attention to the races, but the contests, especially for the state supreme courts, tend to be vicious and expensive. Corporate interests often have a huge stake in the outcome, because most personal-injury lawsuits and other civil cases are handled at the state level. The whole notion of electing judges is tawdry and awful; Justice Sandra Day O’Connor has devoted a great deal of energy, during her retirement from the Supreme Court, to urging states to move to appointive systems. Corporate freedom to dump untold amounts of money into these races will make bad systems worse.
Second, it has long been a staple of conservative thought to criticize “judicial activism”—the practice of unelected judges imposing their own policy judgments to overrule the will of the people’s elected representatives. But it is hard to imagine a more activist decision than the Citizens Union case. Congress passed the McCain-Feingold law, and President George W. Bush signed it, in the knowledge that the Supreme Court had repeatedly blessed restrictions on corporate political activity. But Justice Anthony Kennedy’s opinion blithely overturned Court precedent, and rejected the work of the elected branches—all in service of the bizarre legal theories that (1) corporations have the same rights as human beings, and (2) spending money is the same thing as speaking. This was judicial activism of the most egregious kind. Indeed, it wasn’t as much a judicial opinion as it was Republican talking points.
Read more: http://www.newyorker.com/online/blogs/newsdesk/2010/01/campaign-finance.html#ixzz0swjwcGzJ
- Biodata
From Elizabeth ThompsonToobin joined CNN from ABC News, where, during his six-year tenure as a legal analyst, he provided legal analysis on the nation’s most provocative and high profile cases, including the O.J. Simpson civil trial and the Kenneth Starr investigation of the Clinton White House. Toobin received a 2001 Emmy Award for his coverage of the Elian Gonzales custody saga.
Previously, Toobin served as an assistant U.S. attorney in Brooklyn. He also served as an associate counsel in the Office of Independent Counsel Lawrence E. Walsh, an experience that provided the basis for his first book, Opening Arguments: A Young Lawyer's First Case—United States v. Oliver North.
Toobin has written several critically acclaimed, best-selling books including A Vast Conspiracy: The Real Story of the Sex Scandal that Nearly Brought Down a President, The Run of His Life: The People v. O.J. Simpson, and Too Close to Call: The 36-Day Battle to Decide the 2000 Election. His most recent book, The Nine: Inside the Secret World of the Supreme Court, spent more than four months on the New York Times best-seller list and earned the 2008 J. Anthony Lukas Prize for Nonfiction from the Columbia Graduate School of Journalism and the Nieman Foundation for Journalism at Harvard University.
Toobin earned his bachelor's degree from Harvard College and graduated magna cum laude from Harvard Law School where he was an editor of the Harvard Law Review.
Toobin currently lives in New York City with his wife and two children.
This biography was last updated on 04/07/2009.
- Recent Scandal
NY Daily News
Article sent by Elizabeth Thompson
Baby drama! CNN star Jeffrey Toobin offered Casey Greenfield money for abortion: sources
Rush & Molloy
Sunday could be a bittersweet first Mother's Day for Casey Greenfield.
Greenfield is a pretty, ginger-haired, Yale-educated lawyer and writer who last March gave birth to a love child. The baby's father is married CNN star and best-selling New Yorker writer Jeffrey Toobin. (Casey's father is esteemed political pundit Jeff Greenfield.) Ever since we broke the news of her pregnancy, Casey has remained silent about the baby drama. But now some of her friends are fed up with what they claim is less-than-gallant behavior on Toobin's part.
Greenfield, now 36, was in her 20s when she fell for Toobin, now 49, even though he was wed to Amy McIntosh, the Harvard sweetheart he'd married in 1986 and who gave him two children.
"Jeff and Casey saw each other off and on over the years," says one source. "She was married to someone else for two years. After her divorce, she started seeing Jeff again. He said he was going to leave his wife for her. But, by then, Casey had begun to distrust him. She suspected he had several other mistresses."
In 2008, when Greenfield became pregnant, and when she told Toobin the news, he offered her "money if she'd have an abortion," says a source. He also allegedly offered to pay for her to have another child later via a sperm donor.
"When Casey wouldn't have an abortion, Jeff told her she was going to regret it, that she shouldn't expect any help from him," claims another source.
Greenfield underwent a risky DNA test while pregnant, but Toobin didn't provide his sample and stopped talking to her, according to sources. On the day she gave birth, Greenfield e-mailed Toobin, inviting him to meet his son, Rory. A source says Toobin didn't reply.
Toobin ultimately cooperated with a DNA test that proved he was Rory's dad. In February, a Manhattan Family Court judge ordered him to pay child support. When he refused to pay the full amount, say sources, Greenfield's lawyer threatened to notify his employers and garnish his wages; Toobin then paid up.
Toobin now sees the 13-month-old lookalike heir. "His wife, Amy, comes with them to the park," says a source. He's said to have asked to spend every other weekend with Rory.
"Casey isn't convinced he really wants to serve as a dad," says a friend. "It may be legal maneuvering."
Attorneys for Toobin and Greenfield didn't respond to requests for comment.
"It's been a hard couple of years for Casey," says a friend. "She's a single mom. But her family couldn't be more supportive. The baby is such a joy for everyone."
- The Roberts Court Comes of Age
By ADAM LIPTAKPublished: June 29, 2010
The New York Times
Article sent by Lou Cohen
WASHINGTON — Last June, the Supreme Court term ended with restraint and a cliffhanger, as the court left the Voting Rights Act intact and ordered re-argument in Citizens United, the big campaign finance case.
A year later, the profile of the court led by Chief Justice John G. Roberts Jr. is fundamentally changed. Judicial minimalism is gone, and the court has entered an assertive and sometimes unpredictable phase.
That will only intensify with the retirement of Justice John Paul Stevens, a 35-year veteran of the court and the leader of its liberal wing, and his likely replacement by Elena Kagan, the solicitor general, whose confirmation hearings in the Senate are under way this week.
Chief Justice Roberts, who joined the court five years ago, took control of it this year, pushing hard on issues of core concern to him, including campaign finance, gun rights and criminal procedure, even as he found common ground with his colleagues, including some liberals, on an array of other issues.
He was in the majority 92 percent of the time, more than any other justice. Last year that distinction went to Justice Anthony M. Kennedy, who is often regarded as the court’s swing vote.
“More than in any other year since he became chief justice, this has truly become the Roberts court,” said Gregory G. Garre, who served as solicitor general in the administration of George W. Bush and is now at Latham & Watkins.
The centerpiece of the last term was, of course, the 5-to-4 decision in Citizens United, allowing unlimited corporate spending in elections. The ruling generated waves of criticism, including comments from President Obama at the State of the Union address in January. It was the most controversial decision since the Rehnquist court handed the presidency to Mr. Bush a decade ago in Bush v. Gore, and it was easily the most debated of the Roberts court era so far.
The outcry did not chasten the court.
“I don’t think it made the least bit of difference to the five justices in the majority,” said Paul D. Clement, who also served as solicitor general in the second Bush administration and is now with King & Spalding.
The Citizens United decision contained not a trace of minimalism, and it showed great solicitude to the interests of corporations.
“They’re fearless,” Lisa S. Blatt, who served in the solicitor general’s office for 13 years before joining Arnold & Porter last year, said of the justices in the majority. “This is a business court. Now it’s the era of the corporation and the interests of business.”
That trend, lawyers and legal scholars said, may well threaten recent legislation overhauling financial regulations and the health care system when challenges to them reach the court.
Some of the issues that have most engaged the court in recent years were missing this term, which included only one decision concerning national security and none about abortion or about prisoners held at Guantánamo Bay, Cuba.
The court continued its push to broaden Second Amendment rights, ruling on Monday that the amendment’s protections apply to state and local gun control laws as well as to federal law.
And the justices further limited the rights of criminal defendants. Last term, the court narrowed earlier decisions barring the use of evidence obtained through police misconduct.
This term, the court was focused on the Miranda rule, which requires the police to warn suspects in custody of their rights before interrogating them. In three decisions this term, the court allowed the police to vary the language of the warning, insist that suspects speak in order to protect their right to remain silent and resume questioning after suspects have invoked their rights.
“The court continues its march to restrict exclusionary rules,” said Jeffrey L. Fisher, a law professor at Stanford who argues frequently before the court. “The court is refusing to exclude what the court thinks is reliable evidence in criminal cases. None of the conservatives are unpredictable in any of these cases. They’re leading the retreat.”
The court acted quickly — and, some critics said, rashly — in intervening in cases without full briefing and argument. In January, it halted the broadcast of the trial over same-sex marriage in San Francisco partly on a rationale it seemed to disavow five months later. This month, it sent elections in Arizona into disarray by barring the use of a 12-year-old campaign finance law.
Thomas C. Goldstein, a lawyer with Akin Gump Strauss Hauer & Feld and the founder and publisher of Scotusblog, which prepared comprehensive statistics about the court, said the court’s five more conservative members — Chief Justice Roberts and Justices Kennedy, Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — were simultaneously aggressive and selective.
“I’m struck by the ways in which the conservatives seem to be willing to take significant steps on core questions,” Mr. Goldstein said, noting campaign finance and Miranda rights as examples. “In other cases, the five more conservative members of the court don’t seem to be prepared to press every advantage.”
Indeed, Chief Justice Roberts provided a sixth vote in the decision banning life-without-parole sentences for juvenile offenders, though on a narrower ground than the majority. He was the only justice to join every part of Justice Ruth Bader Ginsburg’s majority opinion casting doubt on the conviction of Jeffrey K. Skilling, the former Enron executive.
And the chief justice joined the court’s four more liberal members — Justices Stevens, Ginsburg, Stephen G. Breyer and Sonia Sotomayor — in Justice Breyer’s majority opinion affirming Congressional power to authorize the civil confinement of sex offenders. Justices Kennedy and Alito filed concurrences, making the vote in the case 7 to 2.
“The term as a whole will go down principally for what we see in the evolution of John Roberts and his leadership of the institution,” Mr. Goldstein said. “He cares about the position of the court in American life. He is not pressing every ideological question but is willing to cross over.”
Chief Justice Roberts is not wedded to a single judicial methodology like the originalism and textualism that are the touchstones for Justices Scalia and Thomas.
Justices Scalia and Thomas, who voted together 92 percent of the time — the highest of any pair of justices — often take positions based on jurisprudential principles without regard to the outcome in a particular case. In criminal cases, Mr. Clement said, “It’s striking how often if the court gets to a pro-defendant result the majority includes Justice Scalia.”
Chief Justice Roberts and Justice Alito, by contrast, can appear more pragmatic.
Nor does Chief Justice Roberts seem as interested in exploring the limits of federal power as Chief Justice William H. Rehnquist, who died in 2005, and Justice Sandra Day O’Connor, who retired in 2006, had been.
“Federalism has less salience with this court than it did with the Rehnquist court,” Sri Srinivasan, who served in the solicitor general’s office and is now with O’Melveny & Myers, said at a Chamber of Commerce briefing last week.
There were more surprises and unusual alliances in this term than in most recent ones. Justice Stevens, for instance, joined the court’s five more conservative members in voting to uphold provisions of a law making it a crime to provide even benign and intangible aid to foreign terrorist organizations.
Justice Sotomayor’s replacement of Justice David H. Souter last year turned out to do almost nothing to alter the court’s ideological balance. She voted with Justices Ginsburg and Breyer 90 percent of the time. Some liberals had feared that her experience as a prosecutor would make her skeptical of some claims from criminal defendants, but she voted in a reliably liberal direction in those and other cases. Her first major dissent was in a case narrowing Miranda rights.
Similarly, the replacement of Justice Stevens by a Justice Kagan, a 50-year-old who has never served as a judge, would in all likelihood do little to affect the voting lineups on the court. But the departure of Justice Stevens nonetheless represents a turning point.
“The intellectual, emotional, political, tactical leader of the left is leaving,” Mr. Goldstein said.
The court is also losing a bit of a maverick who was often skeptical of government power. With a Justice Kagan, Professor Fisher said, “we could be moving more to a court that is willing to defer to the executive.”
Seniority has privileges at the court. The senior justice speaks second at the court’s private conferences, after the chief justice. If the chief justice is not in the majority, the next-most-senior justice assigns the majority opinion.
“Stevens’s seniority and experience on the court really carries a lot of heft,” said Professor Fisher, who served as a law clerk to Justice Stevens. “Even if the exact same person could be reincarnated tomorrow as a junior justice, it would still be a huge loss.”
- The Court’s Aggressive Term
The New York Times
Editorial - Published: July 4, 2010
Article from Lou Cohen - please note that active links in the article lead to the actual cases referred to.
John Roberts Jr., the chief justice of the United States, did not write the most important opinion of his court’s just concluded term, the one that allowed unlimited corporate and union spending in election campaigns. But his concurring opinion in that case, Citizens United v. Federal Election Commission, is the best guide to the court’s most unsettling tendency.
In the most recent term, even more than in earlier years, the Roberts court demonstrated its determination to act aggressively to undo aspects of law it found wanting, no matter the cost.
Explaining why the court’s five-vote majority in Citizens United had toppled precedent to reach its decision, Justice Roberts wrote that the court must be willing to depart from a previous decision if it thinks it does damage to a constitutional ideal, and particularly if the precedent was an aberration. A decision can become an aberration, it turns out, if the court’s conservatives never agreed with it in the first place. If not quite legislating from the bench, this is not a formula for stability.
It was not a thoroughly disappointing term. But the tone and posture of the court’s conservative majority made clear that it is not done asserting itself in redefining campaign finance laws, the rights of corporations, national security powers and the ownership of guns.
We do not argue that precedent must be worshiped and upheld at all costs. If that were the case, as Justice Roberts noted, segregation would still be legal and minimum-wage laws unconstitutional. But when the Brown v. Board of Education decision in 1954 overturned Plessy v. Ferguson from 1896 and outlawed segregation, it came after many years of relentless legal efforts against Jim Crow by Thurgood Marshall and many others. It was clear that the legal landscape was changing.
When the Roberts court overruled precedent in the Citizens United case, it did so far more abruptly. The dissenters, led by Justice John Paul Stevens, said the majority “blazes through our precedents” in a “dramatic break from our past.” It was nothing other than judicial activism when the court five months later stepped directly into the gubernatorial race in Arizona, cutting off matching funds to candidates participating in the state’s campaign finance system. The message to other states and cities with similar systems was clear: Watch out. When the Roberts court has a goal in mind, niceties like an actual political campaign cannot be allowed to get in the way.
The deference to corporate rights found in Citizens United could also be seen last month. The court made it harder for consumers and workers to challenge the mandatory arbitration clauses found in so many contracts, all designed to keep the fate of corporations out of the hands of judges and juries. When that mindset is combined with the court’s willingness to defy precedent and Congress, it could spell trouble for the national health care law when legal challenges reach the court.
But the court’s shifting majorities and Justice Roberts’s own preferences were unpredictable this year, leading to many welcome decisions. Life sentences for juvenile criminals who do not commit murder were banned. The vague “honest services” statutes, a favorite of prosecutors, were struck down.
Court decisions about property laws were ruled not to be “takings,” a blow to the property rights movement. And the court refused to put more categories of speech beyond the First Amendment.
Still, the problematic decisions continue to leave us worried about upcoming terms, where more decisions about fundamental rights await. In the last month alone, majorities on the court said gun ownership was a fundamental Second Amendment right that applies to states and cities, while reducing the First Amendment rights of those who try to pacify terrorist groups. If Elena Kagan is confirmed, her first task will be to keep her pledge and help the court realize that judicial modesty actually means something.
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